Jus Contribuere: Essential Contribution as a Basis for Membership

Responding to the shock of the pandemic, countries such as Canada and France introduced pathways to permanent residency for certain categories of essential workers, offering them a fast track to citizenship in recognition of their frontline contributions. Marlène Schiappa, the former French citizenship minister, articulated the spirit of this essential contribution principle for granting membership, which we might call jus contribuere (Latin for “contribute,” “unite”): “France wanted to show its gratitude to those who had ‘shown their attachment to the nation’” by taking on burdensome tasks and risks to save others in the battle against COVID-19. Reminiscent of the logic of granting citizenship to immigrants who volunteered for military service, France accelerated access to membership for those who had “actively participated in the national effort with dedication and courage” during the pandemic. By granting citizenship to these individuals, “the state wishes to recognise their commitment.”Footnote ¹⁰ In introducing a pilot project for fast-tracking essential workers to permanent residence, Canadian officials similarly emphasized the “incredible contributions of newcomers” in the fight against the pandemic.Footnote ¹¹ In return, essential workers in select occupations (healthcare provision, caregiving, and food production and distribution, among others) were offered an expedited pathway to naturalization.Footnote ¹² Further echoing the war effort analogy, the United Kingdom established a bereavement scheme granting permanent residency to direct relatives of foreign National Health Service staff who died as a result of contracting COVID-19.Footnote ¹³ Access to membership is conceptualized in these examples as a reward (a posthumous reward, in the U.K. example) that is given in recognition of the vital contributions by these pandemic warriors.Footnote ¹⁴ Such acts of state largesse are reminiscent of historical examples of bestowing citizenship on those who volunteered to serve in the military or otherwise performed extraordinary civic acts.

The essential contribution model has two variants: in the first scenario, it takes the form of a tailor-made program, a window of opportunity that has a clear sunset clause and does not entail a structural reform. Rather, it offers a special platform for recognition of contribution extraordinaire. Call this the “narrow conception.” Compare this conception to a second variant—“the broad conception”—that contemplates a more fundamental change by foregrounding the realization, shared by philosophers, economists, and social activists, that society cannot operate without essential workers. Remarkably, a recent study found that in the United States close to three-quarters (74 percent) of the nation's undocumented workers met the government's definition of essential workers.Footnote ¹⁵ Public opinion polls show that more than 65 percent of Americans support offering these essential workers a green card, regardless of their documentation status.Footnote ¹⁶ Accordingly, pro-immigrant advocates argued that “as the nation emerges from the COVID-19 pandemic and looks toward the future, legalization is a key component of a just, equitable, and robust recovery.”Footnote ¹⁷

Though the impulse to link membership with contribution is not new, the nature of contribution has been given different interpretations in different times. Most recently, we have seen a trend that reserved the grant of citizenship to those who have proved that they “earned” it—either through cultural and civic integration or through proof of economic self-sufficiency.Footnote ¹⁸ Elsewhere, I have critically analyzed the rise of increasingly instrumental, flexible, and market-oriented approaches to citizenship that are actively facilitated by governments.Footnote ¹⁹ The pandemic's extreme circumstances foregrounded the contributions made by often “invisible” precarious workers. They heeded the call to perform their “special obligations” (as U.S. officials put it) in a moment of crisis. As such, the current postpandemic moment provides an opportunity to offer essential workers access to these privileged pathways typically reserved for the well-off. This is an ex post facto recognition, not an ex ante demand for additional sacrifice and risk taking. If these workers’ contributions were important enough to be labeled as “essential” during the pandemic, then they must be sufficient to justify access to secure legal status as a matter of fairness, reciprocity, and just reward.

The moral intuition here is as straightforward as it is powerful: Their actions merited their membership.Footnote ²⁰ In this version of jus contribuere, those who received the short stick in birthright lottery, and as such cannot claim an inheritance stake in society's “common possession” (to draw on T. H. Marshall's definition of citizenship), can overcome this initial deficit by acquiring membership in the common possession as a fruit of their labor. This may be thought of as a present-day twist on the classic Lockean labor theory of property. By performing necessary work—from participation in the paid labor force to various forms of unremunerated care—these newcomers acquire a stake and share in the membership, as they have joined the common possession by mixing their labor with it.Footnote ²¹ Note that this rationale provides powerful ammunition to assist those whose rootedness in the fabric of society has not translated into legal citizenship and the protections it grants to the individual.Footnote ²² However, it does nothing either to challenge the initial arbitrariness of the allocation of membership status by birthright or to address the global restrictiveness of mobility, both of which I address elsewhere.Footnote ²³

Returning our gaze to the United States, the logic of contribution as a basis for membership informed the introduction of the Citizenship for Essential Workers Act in 2021. This bill, which has languished in both the House of Representatives and the Senate, proposed granting essential workers and their families the opportunity to regularize their status as a stepping stone to citizenship. Many of the potential beneficiaries had already established deep roots in American society prior to the pandemic. Indeed, more than half had resided in the United States for longer than fifteen years, and more than 70 percent of immigrant essential workers had lived in the country for over a decade.Footnote ²⁴ In addition, over a third had fulfilled another key element of the American Dream: purchasing a home.Footnote ²⁵ Nevertheless, their legal status (or lack thereof) continued to stipulate and perpetuate their exclusion from what Judith Shklar described in American Citizenship as “public standing.” One who has no standing is denied not only formal status and the franchise but also social dignity and a civic personality.Footnote ²⁶ Viewed through this prism, which recounts the claims of equal citizenship arrayed in the American past against slavery, racism, and sexism, the injustice of the present situation is glaring: “We must not allow the workers who are called essential today to be deported tomorrow.”Footnote ²⁷

This legislative proposal brings together themes of public standing and entitlement to membership: “Essential workers deserve to stay here in their home and to be recognized as the heroes—the Americans—they are.”Footnote ²⁸ The reference to “heroes” also helps explain the act's extension of resident status to relatives of those who died from COVID-19 while performing a job defined as essential or critical by the government (analogous to the U.K. bereavement scheme). As commentators have noted, such grants invert the “typical relationship between membership and responsibilities . . . Usually, someone becomes a member of a group before taking on special duties and responsibilities of membership.”Footnote ²⁹ In the case of providing critical services during the pandemic, the performance of the duty preceded membership and, as such, legitimizes its postpandemic bestowment.

While a powerful ally to the cause of essential workers, jus contribuere runs the risk of romanticizing sacrifice. It sets a high bar by requiring extraordinary contribution while overlooking the reality that many members of the essential workforce may have had little choice but to expose themselves to working in dangerous conditions, at great risk to themselves and their families.Footnote ³⁰

Another attempt to expand pathways to permanent status for millions of long-term U.S. residents was introduced in 2022. The new bill, entitled Renewing Immigration Provisions of the Immigration Act of 1929, would update the existing registry statute so that migrants who endured the pandemic hardship alongside other Americans could qualify for a green card as a stepping stone to citizenship if they lived in the country continuously for at least seven years before filing an application for adjusting their status. This proposal connects citizenship reform to the postpandemic economic recovery. It is estimated that if “the undocumented individuals covered in this bill became citizens, they would contribute approximately $83 billion to the U.S. economy annually and about $27 billion in taxes.”Footnote ³¹ An estimated eight million migrants would be eligible to apply. This route to citizenship gives greater weight to co-presence and continued residence as indications of the roots that people are likely to have established to the country, waiving the administratively taxing requirement of proving that they individually “earned” their status through essential contribution. It offers a universalizing version of the call to expand access to postpandemic membership, encapsulated in the slogan recently adopted by a broad coalition of migrant activists: “We are all essential.”Footnote ³²

To date, the real-world postpandemic implementation of jus contribuere has primarily seen the adoption of the narrow conception of essential contribution as a basis for membership, though the recent U.S. proposal and related policy developments in other countries are now fusing the essential contribution logic with the economic recovery narrative to expand the scope of the principle to potentially regularize a more expansive swath of the migrant population—in line with the broad conception.

Solidarity in Place

Through the limitations placed on individual mobility, the pandemic has reminded us of the significance of movement, the “most ancient freedom” as Hannah Arendt once memorably put it.Footnote ³³ It has also brought about a sharper appreciation of the significance of place and space in shaping human relations, constituting community, and generating special obligations. Notions of membership that are grounded in place-specific activities and obligations began to flourish before the pandemic and may well accelerate in its aftermath.Footnote ³⁴

The basic idea of what we might call “place-based membership,” the second observed trend, is that newcomers establish a claim to membership through their interdependence with local jurisdictions, practices, and institutions, and by participating in schemes of cooperation with the people inhabiting such places. Given the centrality of borders and shelter-in-place measures in the arsenal of pandemic response, the COVID-19 crisis has brought home the realization that space matters. It mattered dramatically when policymakers had to decide where and how to implement the authority to arrest mobility, reviving once-dormant jurisdictional boundaries within states and between them, and keeping in—or freezing out—people depending on what side they were caught on when the pandemic hit.

In Italy, an early epicenter of COVID-19, government authorities issued emergency decrees that severely constrained mobility, defining when and where people could move, for what purposes (“essential movement” was restricted to authorized essential work and health emergencies), at what times, over what distances, and in which color-coded zones (different localities were categorized as red, yellow, or green depending on infection rates). These restrictions on movement between Italian provinces “reactivated” dormant subdivisions within the country. Italy's actions, much like China's early lockdown in Wuhan and nearby cities in Hubei, proved a precursor to the action taken by other countries. Subnational divisions, frequently treated as little more than administrative categories before the pandemic, turned out to be vital policy tools in the desperate bid to stop the transmission of the virus. These responses, which did not always prove as effective as planned, were designed to “break the chain of infection” through an added spatial barrier or layer of distancing. While the closure of international borders was predictable, the amplification of subnational borders came as a surprise.

With such massive rebordering, we saw community-based and neighborhood-scale organizations step up to help individuals obtain critical services. The local became ever more pronounced, fitting a pattern of ground-up democratic resistance and contestation whereby “social movements . . . [are] acting in multiple places and on multiple scales at once.”Footnote ³⁵ This variant of democratic politics is imagined as at once decentralized and transnational. In emphasizing the importance of the spatial element, activists and policymakers responding to the pandemic were echoing a trend that geographers refer to as “rescaling” membership, both above and below the national level. An example of the latter may be found in the call among city planners to endorse the “fifteen-minute city” concept. Originating in Paris (as the “ville du quart d'heure”), this concept calls for designing or redesigning urban areas so that residents will be able to find everything they need for their daily activities without traveling too far; a fifteen-minute walk or bike ride is the target. The ideal is to create “‘a city of proximities’—not only between structures but people,” a view enhanced by the adoption of participatory budgeting practices, which reinvigorate local democracy by allowing residents to propose projects and vote on how to allocate 5 percent of the municipal spending in Paris.Footnote ³⁶ The mayor of Paris, Anne Hidalgo, made the quarter-hour city a pillar of her reelection campaign in 2020, before the outbreak of COVID-19, emphasizing the social, economic, and environmental benefits of reducing stress and our carbon emission footprint. This “ecological transformation” is based on mixed-use districts and promises to improve sustainability and the quality of life of both residents and visitors. When the pandemic hit, this reimagination of social life in megacities soon became a lived reality for millions around the globe.

Thinking about place-based membership need not be confined to the local, however. It may also operate in the opposite direction, on a large-scale canvas, expanding to “macro-territories” encompassing multiple political units. This model, which provides greater freedom of movement within the macro-territory, already exists with different levels of formalization in regional blocs or through bilateral and multilateral agreements. For instance, the Nordic Passport Union allows citizens of Iceland, Denmark, Norway, Sweden, and Finland to move to any Nordic country without needing a visa or residence permit as they establish their life plans in their jurisdiction of choice. In South America, the Southern Common Market, or MERCOSUR, countries have established a “right to migrate” among the member states. Regional citizens who wish (or need) to move across national borders within this macro-territory gain temporary residence wherever they settle, a status that can be converted into permanent residence after a two-year stay. In the European Union, free movement is a promise given to all citizens but not equally or immediately extended to all migrants (known as “third-country nationals”), let alone to those kept outside EU territory through the combination of locked gates and shifting borders that guard Fortress Europe.Footnote ³⁷

While macro-territories challenge the exclusivity of the national, they do little to overcome interregional inequalities in mobility, or what has been aptly termed the “global mobility divide,” which traces not only contemporary economic disparities but also the histories of violent and racialized forms of power and domination that were exerted by the metropolises toward their colonies.Footnote ³⁸ During the pandemic, the abrupt closure of borders coupled with the lopsided distribution of vaccine supplies across the globe saw widening gaps between high-income and low-income countries, exacerbating the disparities in opportunity that were already attached to the birthright lottery in the prepandemic world. We also witnessed the creation of “bubbles” of safe movement among richer countries and high-vaccination locations, while all others were excluded, a pattern that may well prove to be a precursor to future responses to acute global crises.Footnote ³⁹ Pandemic-era insularity not only affected human mobility; it also handicapped global supply chains that rely heavily on “just-in-time” inventory, manufacturing, and cross-border transport of products (by ship, plane, train, truck), reminding us again of the significance of the local in the global. To address the contradictory demands of sovereigntist impulses and globalization pressures, Victoria Hattam proposes that we engage in an “imaginative politics” that unsettles existing dichotomies and prescripted answers, inviting us to engage in the kind of excavation of hope from despair that I mentioned earlier.Footnote ⁴⁰

The pandemic has taught us that none of us can survive in solitude. It revealed the complex and influential ways in which proximity and distance impact our interactions with one another, with civil society organizations, and with government officials at various levels, especially when it comes to vital interests. Current accounts of place-based membership focus primarily on complementing and supplementing existing national models, but in theory, they could also serve as their alternatives. New scales of membership may emphasize the importance of cities as centers of gravity for human engagement (generating notions of “city-zenship,” as some of have put it), just as they may contribute to transnational interpretations of solidarity and participation.Footnote ⁴¹ Indigenous claims for self-governance similarly invite a reimagination of the relationship to land and its cosmology at a scale that diverges from the fixed black lines on maps that currently delineate boundaries of all kinds.Footnote ⁴²

Add to this the urgent need to respond to the devastating effects of climate change on populations living in low-lying areas, as well as the calls to preserve the sovereignty and communal existence, including the nationality, of the citizens of island nations such as Tuvalu, the Marshall Islands, and Kiribati, for whom rising sea levels are a truly existential threat. To address these challenges, we will need new international conventions, fresh thinking, mutual obligations, issue linkage (for example, linking climate disaster relief by the major polluters in the richer parts of the world with debt relief to poorer nations as part of the effort to “decolonize” international law in ways that are more just and equitable), and a great deal of good will.Footnote ⁴³ None of this will be easy to achieve, as emerging visions for reorganizing community and territory challenge the vested interest in maintaining the international system of states’ default reliance on “spatial statism” models.Footnote ⁴⁴ Yet neither citizenship nor democracy are static concepts. They have operated at many different scales in the past—before the rise of the modern territorial state—and may shape-shift again in the future.

Stratified Membership

While the first two trends describe inclusive shifts, the pandemic and its aftermath may also engender a darker and more exclusionary future—one that increasingly highlights the disparity in status among residents who are not members by forcing them into a “forever temporary” predicament.Footnote ⁴⁵ We can call this the “stratification of membership.” The treatment of migrant workers in the Gulf countries, for example, has shown the unscrupulous power of current members not only to lock the gates to new entrants but also to push out those who were already in. Under the kafala system, legal status depends on sponsorship by specific employers in specific sectors; after the pandemic hit and the economy faltered, prohibitive public health measures and premature termination of contracts caused these migrants to lose their jobs. Millions found themselves stranded in their destination countries without legal residency, unemployed, and with no access to healthcare or other basic protections. In this example, the pandemic exposed not only the relationship of uneven interdependence between wealthy citizens of the Gulf states and migrant workers hailing from poorer countries but also, in the words of human rights activists in the region, decades of “systemic racism and discrimination against migrant workers.”Footnote ⁴⁶ Furthermore, the COVID-19 crisis “has made clear that migrant workers have never been considered true members of these societies—they are viewed as temporary sources of labor, nothing more.”Footnote ⁴⁷ Brenda Yeoh's unsettling description of this approach as a “use-and-discard” policy emphasizes the precariousness resulting from the structural nonincorporation of migrant workers.Footnote ⁴⁸ Globally, the International Labour Organization reported that millions of temporary migrant workers were “suddenly repatriated, without operational systems and protocols in place.”Footnote ⁴⁹ In some circumstances, public health laws were used to justify the expulsion of migrant workers (such laws were also used to bar entry for asylum seekers).Footnote ⁵⁰ India alone counted more than five million stranded workers who had to be flown home when the pandemic took hold.Footnote ⁵¹ Close to 1.5 million Sri Lankan migrant workers could neither work in their destination countries nor return home.Footnote ⁵² Migrant workers from countries in the Asia-Pacific region bore the heaviest brunt of the pandemic's disruption, but they are not alone.Footnote ⁵³ Across the globe, migrant workers were either forced to leave or remained in host countries under compulsory lockdowns and in constant fear of the impact of COVID-19. Moreover, in too many parts of the world, migrant workers faced arbitrary detention and deportation; inadequate healthcare and no access to vaccination; greater risk of contagion due to residence in overcrowded living quarters; and heightened surveillance of their bodies and movement through mandatory contact-tracing apps, biometric identification tools, ankle and wrist geolocator monitors, facial recognition technologies, and even drones guided by AI algorithms to restrict the movement of “suspected” bodies in public spaces.

For those on the move and in search of international protection, the abrupt closure of borders was accompanied by harsh enforcement measures including forms of “expulsion, containment, and abandonment.”Footnote ⁵⁴ In contrast with the word and spirit of refugee law and other human rights instruments, fifty-seven countries completely closed their borders to those seeking asylum during the pandemic.Footnote ⁵⁵ Refugees who sought safe haven were locked out of the countries whose territorial waters or land ports they had reached (Malta, the smallest nation of the EU, was an early mover and emulated by others countries)—assuming they had not been stopped en route by shifting borders that nowadays operate potentially anywhere in the world, in countries of origin and transit, along checkpoints in major migration routes, and in “buffer zones” or amorphous “transit areas.”Footnote ⁵⁶ International students, too, were prevented from traveling to institutions that had admitted them; conversely, some became trapped in their host countries with no opportunity to return home. Family members were prevented from rejoining loved ones; even citizens, the most privileged category of entrants and returnees, were stranded outside their home countries with no means of return (Australia is a case in point). Even prior to the pandemic, countries devised sophisticated entry, settlement, and naturalization policies based on an alchemy of upholding membership boundaries that were both closed and open simultaneously, by making it harder and harder for “undesired” migrants to enter while rolling out the red carpet for “desired” migrants.Footnote ⁵⁷

Pushing the stratified-membership narrative a step further, imagine a world in which displacement due to civil strife, warfare, and climate disaster intersects with resource scarcity—a world wherein struggles for habitable land, clean water, and breathable air become the battlegrounds for survival. We can only imagine the length to which well-off societies will go to protect their “turf,” including by deterring unwanted migrants. Recall the images of government officials forcibly separating children from their parents at the U.S-Mexico border, under a Trump era “zero tolerance” policy that saw undocumented asylum seekers imprisoned and their accompanying children under the age of eighteen handed over to federal detention facilities and other shelter and care arrangements. Many of these children were under the age of five. Audio recordings of sobbing children screaming for their parents shocked the conscience of the nation. In arts and film, we find many chilling visual depictions of caged refugees; Alfonso Cuarón's Children of Men comes to mind. Even today, the European Court of Human Rights, widely regarded as the most effective human rights court in the world, has scaled back its pro-immigrant jurisprudence. The court has developed, in the aftermath of the 2015 migration crisis, a body of judgments that refuses to condemn states that engage in pushback operations when uninvited migrants are caught trying to cross the border without authorization. Such judgments claim, instead, that those who put their lives at jeopardy by seeking to cross the border irregularly are estopped by their own conduct—essentially making them culpable for circumventing legal pathways even where no legal pathways were realistically available.Footnote ⁵⁸ This catch-22 is further exacerbated by the invention of invisible “shifting borders” that stop people in their tracks long before they can reach the territories of the countries in which they seek international protection.Footnote ⁵⁹

It is thus not surprising that there is despair in the air. For some, COVID-19 has revealed the ultimate bankruptcy of today's democracies, which placed migrant workers, people of color, and women in harm's way by defining their contributions as essential during the pandemic—meaning they exerted a deadly cost that they and their families disproportionately bore—before disowning any societal responsibility to provide them the security of status, and with it, access to societal safety nets and political voice. Several commentators have further argued that the pandemic provided a pretext for producing and reproducing hierarchized differences that are based on racial capitalism and new forms of coloniality.Footnote ⁶⁰ These accounts excel at capturing the devastation of today's moment, but they offer no grain of hope. By contrast, a more forward-looking approach can be found in the robust mobilization received by #StatusforAll grassroots advocacy campaigns calling for the grant of citizenship to migrant workers and their families in the context of a just recovery from COVID-19. These campaigns share an adamant critique of today's conditions but have turned their criticism into fuel for claims-making by, for, and with migrant workers’ networks and advocacy groups seeking a better tomorrow.